Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2006-213

JANUARY
TERM, 2007

State of Vermont } APPEALED
FROM:

}

}

v. } District
Court of Vermont,

} Unit
No. 3, Washington Circuit

Devon Fraser }

} DOCKET
NO. 753-7-05 Wncr

Trial Judge:
Walter M. Morris

In
the above-entitled cause, the Clerk will enter:

Defendant
appeals his conviction of possessing heroin, arguing that the trial court erred
by admitting evidence of prior bad acts and denying his motion for a mistrial.
We affirm.

Defendant was
arrested on July 8, 2005 following a prearranged Araid@ on the home of a police
informant, who had told officers that several persons were planning to
distribute heroin and cocaine from his house that evening. After obtaining a
warrant, police searched the premises, which was occupied by the informant,
defendant, and his two companions. The police did not find any contraband in
the house, but discovered several bags of heroin in the glove compartment of a
car registered to the girlfriend of one of the men present at the house with
defendant. Police also discovered, in a camper on the premises, materials
commonly used for heroin distribution. Defendant was arrested and charged with
possession of heroin.

On the morning
of defendant=s trial,
the trial court granted defendant=s
motion in limine with respect to evidence concerning his alleged drug dealing
in Chittenden County before July 7, 2005, ruling that the prejudicial impact of
such evidence substantially outweighed its probative value. The court also Ainitially@ excluded evidence of
defendant=s pattern and
practice of having others possess unlawful drugs for him in connection with his
drug-distribution schemes, but stated that the State could renew its motion
with respect to this evidence in response to any defense evidence concerning
the constructive possession of drugs. Finally, the court denied the motion in
limine with respect to evidence of drug dealing on July 7, 2005 and continuing
into the next day, ruling that it was indicative of a course of conduct, and
thus its probative value outweighed any potential prejudice to defendant. The
court did not rule on defendant=s
request to exclude evidence of his prior conviction for possession of a
weapon. Following the trial, during which defendant raised several objections
to testimony and sought a mistrial, the jury convicted him of the charged
offense.

Defendant first
argues on appeal that the trial court disregarded the law of Vermont and its
own ruling on his motion in limine by admitting evidence regarding his prior
drug dealing and his prior conviction for possessing a weapon. We find no
basis for reversing defendant=s
conviction. During cross-examination of a federal agent who had helped execute
the search warrant, defense counsel elicited the agent=s acknowledgment that his primary involvement
in the case was to seize firearms, but that he had not found any firearms
during the search and had not been informed prior to the search that there
would be firearms present. On redirect, the State attempted to rehabilitate
the agent=s testimony
by showing that he expected the case to involve firearms. Noting that defense
counsel had asked about guns, the prosecutor asked the agent what he had known
about defendant=s
involvement with guns. The agent replied that a prior search warrant executed
in Burlington at an address linked to defendant had yielded a holster, that the
informant had indicated defendant intended to trade drugs for a firearm, and
that a followup investigation had shown a prior conviction for a firearms
violation. Defense counsel objected and sought a mistrial, but the court
overruled the objection, stating that defense counsel had invited this
testimony by attempting to impeach the agent with respect to his involvement in
the case. After another objection by defense counsel, the court clarified that
it was allowing evidence of the holster, but that it would not allow any
further testimony regarding the prior conviction.

On appeal,
defendant contends that the court erroneously allowed the highly prejudicial
testimony to rebut defendant=s
claim that the officer knew nothing about who owned the heroin found in the
glove compartment of the vehicle parked at the site of the search. We reject
this argument because its factual premise is incorrect. The trial court
explicitly allowed the challenged testimony because defendant had invited its
admission by seeking to impeach the agent regarding his involvement in the
case. Defendant does not address this reasoning, and we find no abuse of
discretion as to admission of the testimony for this purpose. Defendant
directly broached the topic of guns to emphasize the absence of firearms at the
scene of the search and to raise questions concerning the credibility of the
agent and the propriety of the presence of federal agents at the scene. Under
these circumstances, the court did not abuse its discretion in allowing the
witness to explain why he was involved in the case. Cf. State v. Chambers,
144 Vt. 377, 380 (1984) (once the defendant Aopened
the door@ by
attempting to impeach the State=s
witness, it was Apermissible
for the State to follow up that questioning by clarifying the statements used
for impeachment on redirect examination@).
Any prejudice to defendant resulting from the agent=s testimony on redirect examination was
outweighed by the need to rehabilitate the witness and to present a complete
picture of the agent=s
involvement in the case so as not to mislead the jury. Because we find no
error in the admission of the agent=s
testimony, the trial court did not abuse its discretion in denying defendant=s motion for a mistrial.
See State v. Desautels, 2006 VT 84, &
18 (the trial court=s
denial of a motion for a mistrial will be upheld unless the court totally
withheld its discretion or exercised it on clearly untenable or unreasonable
grounds).

Defendant
contends, however, that the prosecutor continued to elicit prejudicial
testimony regarding his prior bad acts, this time from a Barre City police
officer who participated in the search, to create an image of him as a
gun-toting African-American drug dealer. Defendant cites two instances. In
the first instance, the prosecutor asked the officer on direct examination
about the significance of fireworks seized at the scene of the search. The
officer responded that they were to be Aused
in a transaction for heroin between . . .,@
but before he could finish his sentence defense counsel objected, and the court
let the answer stand without further response. In the second instance, the
prosecutor asked the officer how he came to discover the identity of defendant
and his two companions. The officer responded that their identification was confirmed
when their fingerprints were sent to an FBI laboratory, which identified
defendant and one of his companions, but not the other one because he did not
have a criminal record. Defense counsel approached the bench and stated that
while he could not object because of how the questions were posed, he was
concerned that the prosecutor was attempting to elicit responses that would
inform the jury of defendant=s
criminal record. The prosecutor stated that the witness=s answer was nonresponsive. The court warned
the prosecutor, struck the witness=s
response from the record, and told the jury to disregard it.

Defendant
contends that the cumulative effect of the officer=s testimony, in addition to the testimony
elicited from the federal agent, deprived him of a fair trial and required the
court to grant a mistrial. We find this argument unavailing. First, we have
upheld the admission of the federal agent=s
testimony on redirect. Second, defendant did not seek a mistrial or even
object on the grounds raised on appeal with respect to the officer=s testimony. Third, the
trial court did not allow the officer to finish his testimony regarding the
first instance and gave the jury a curative instruction regarding the second
instance. See State v. Mears, 170 Vt. 336, 346 (2000) (A[T]he court=s >immediate and unequivocal= curative instruction was
sufficient to cure any potential prejudice.@
(quoting State v. LaBounty, 168 Vt. 129, 140 (1998))). Under these
circumstances, we find no basis for overturning defendant=s conviction.